Complaint Under Section 35 of the Consumer Protection Act, 2019.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : None for the complainant.
For OP : Exparte.
ORDER
PER MONIKA BHAGAT, MEMBER
1. In brief, the facts of the case are that the OP allotted a plot No.32 measuring 95 yards @ Rs.30450/- per square yard vide allotment letter Ref: Memo No.GLADA-EO-2020/3664 dated 20.10.2020 in response to her application No.43 in their project namely Glada Estate Sua Road, Ludhiana. Draw of lots was held on 14.10.2019 after payment of 25% amount being cost of plot and 2% additional amount being cancer cess, totaling Rs.7,81,043/-. The complainant stated that in the said allotment letter, it was mentioned that “Possession of plot shall be handed over to the allottee within 90 days of issue of allotment letter provided 25% of tentative price has been paid. If possession is not taken by the allottee within the stipulated period, it shall be deemed to have been handed over on the expiry of said period.” According to the complainant, the OP has not handed over the possession nor has completed the development works at the site as per the clause 4(1) of allotment letter. The complainant further stated that the OP has deceived her by allotting her a plot GLADA Estate, Ludhiana in the project, legal title of ownership of which is defective and subjudice as court case regarding said project were pending at the time of issuance of allotment letter. The OP is also a respondent in case title Sukhwinder Singh Vs Kartar Singh and others, pending before Civil Judge (Junior Division), Ludhiana. A status quo has been issued in respect of the project of the OP by the Hon’ble Mr. Justice Raj Mohan Singh of Punjab and Haryana High Court on 22.11.2021 and the stay has not been vacated till date. The OP was well aware regarding pendency of the said case and has intentionally allotted plot in favour of the complainant and even started charging interest on balance 75% payment. The complainant further stated that the OP has violated the orders of Hon’ble Punjab and Haryana High Court by floating a scheme and by allotting plots even without completing the development works at the site. However, the complainant cannot pay the pending installments of plot and balance 75% and even the OP cannot accept the same in view of issuance of status quo order. Further the complainant cannot get the conveyance deed after making entire balance payment. On 17.05.2022, the complainant sent registered letter to Sole Arbitrator cum Chief Administrator Glada, Ludhiana with request to resolve the issue but to no reply was given.
The complainant further stated that the Hon’ble Punjab and Haryana High Court in its order dated 22.11.2016 passed in CWP 4108 of 2016 Ram Kishan and others Vs State of Haryana and others issued directions, which is reproduced as under:-
“9. Before parting with the order, it is observed that this court is flooded with huge litigation of such like disputes, where allotment of plots/booth sites, commercial sites, have been made by the respective governments of the state of Punjab and Haryana, including their Corporations, government undertakings, like Huda and Puda, without completing Development works and providing all basic amenities and facilities. Such action of the Government is not only a disadvantage to the government itself, but also to public at large, who has to indulge in litigation and spend valuable time of their lives, hard earned money and energy in the courts for years. The time has now come that such type of actions of Government to allot sites without making the same litigation free and without completing the development works and providing all basic amenities and facilities, have to be curbed down, because such actions lead to multifarious litigation wasting precious time and energy of the court, which can be utilized in disposal of some genuine litigation. Such casual approach of the concerned officers have to be dealt with severely. Therefore Chief Secretaries of States of Punjab and Haryana as well as Advisor to Administrator, Union Territory Chandigarh, are hereby directed to ensure that no government site or site through any government agency shall be offered by way of allotment, auction or otherwise, unless and until the same is completely litigation free i.e. without any encumbrances etc., and is fully developed, provided with all basic amenities. Moreover, all the allottees have to be treated on parity without any discrimination, because every citizen of this country before Government functionaries is equal before it.”
The complainant further stated that in compliance of the said order, a meeting was held on 02.01.2017 under the Chairmanship of Additional Chief Secretary (Development), Government of Punjab and made the decisions, which are reproduced as under:-
“Para (3) of proceedings-In case the site to be sold through draw of lots of the inviting applications from the public the following policy must be followed:-
- Application must be invited only when the land is free from all encumbrances.
- After the receipt of application money along with 10% of sale price, the draw of lots will be held by the authority/department. In such cases after payment of 25% of condition price, the LOI/Allotment letter will be issued to the successful applicant and no interest must be charged till the possession of Plot is given to the allottee.
- No possession in such cases must be given to the allottee until and unless all the basic amenities i.e. water supply, sewerage, roads, parking etc. wherever required is made.
- The department/Authority will be duty bound to complete all the development works at site in shortest period possible not extending more than 18 months. In case 18 months is elapsed and the possession is not handed over to allottee, simple interest which is 12% will be provided to the allottee on 25 percent amount which has been deposited by the allottee with the Authority/Department.”
According to the complainant the OP while floating their project had not complied with the above said directions and has violated the same. Neither the development work has been completed nor the possession has been given to the complainant within 90 days or within 18 months. Even the site was not litigation free at the time of issuance of allotment letter. The complainant wrote letter dated 04.07.2022 to the Chief Administrator, Glada with copy to Chief Minister, Punjab posted on 16.07.2022 with request to refund Rs.7,81,043/- with interest @12% per annum but no response has been received till date. In the end, the complainant has prayed for refund of deposited amount of Rs.7,81,043/- being 25% of payment of plot along with 2% cancer cess with interest @12% per annum from the date of deposit.
2. Upon notice, none appeared on behalf of the OP despite service and as such, the OP was proceeded against exparte vide order dated 01.12.2022. Strangely enough the OP being a functionary of the Government has chosen not to appear for the reason best known to their officials.
3. In exparte evidence, the complainant tendered her affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents Ex. C1 is the copy of letter No.GMADA/RTI/2022/20758 dated 22.09.22, Ex. C2 is the copy of letter dated 28.07.2017 of PUDA, Mohali, Ex. C3 is the copy of letter dated 24.01.2017 of Government of Punjab, Ex. C4 is the copy of letter No.4400 dated 15.11.2022 of SDO, GLADA to the complainant, Ex. C5 is the copy of letter No.427 dated 07.02.2023 of GLADA, Ludhiana to the complainant, Ex. C6 is the copy of letter No.3682 dated 08.09.2023 of GLADA, Ludhiana to the complainant, Ex. C7 is the copy of agreement, Ex. C8 is the copy of advertisement of the OP given in newspaper, Ex. C9 is the copy of cause list of Hon’ble Supreme Court of India, Ex. C10 is the copy of brochure of the OP, Ex. C11 is the copy of order dated 28.02.2023 of Hon’ble Punjab and Haryana High Court, Ex. C12 is the copy of case status pending before Civil Courts, Ludhiana and closed the evidence.
4. The complaint has been received through E-Dakhil and the complainant sought exemption from personal appearance on many occasions by sending Emails. Today none has come present on behalf of the complainant. We have gone through the complaint, affidavit and documents produced by the complainant. We proceed to decide the case on merits.
5. Undisputably, the complainant, vide allotment letter dated 20.10.2020 was allotted a residential plot No.32 Park Facing measuring 95 sq. yards under 80-20 scheme on free hold basis through draw of lots held on 14.10.2019. The tentative price of the plot was Rs.28,92,750/- out of which 25% of the price amounting to Rs.7,23,188/- was paid by the complainant within the stipulated period. The balance payment of 75% was to be paid in six half yearly installments commencing from 01.05.2021. As per allotment letter, the possession of the plot was to be handed over to the allottee within 90 days of issue of allotment letter provided 25% of the tentative price has been paid. If possession is not taken by the allottee within stipulated period, it shall be deemed to have been handed over on the expiry of said period.
6. According to the complainant, the OP failed to deliver the complete and effective possession and did not provide the basic amenities like water supply, sewerage, roads and parking etc. Even otherwise at the time of publishing of the scheme and thereafter, the OP was not in a position to pass a legal and valid title in favour of the allottees as the matter was under litigation in different courts and in one such litigation, the Hon’ble Punjab and Haryana High Court was pleased to issue interim order against the OP. Perusal of the record also shows that the factum of previous litigation was also not mentioned in the brochure Ex. C10. Certainly, there is concealment of material facts and gullible persons like the complainant were induced to shell out their hard earned money into the scheme and the OP resorted to mis-representation and fraudulent practice.
7. During the pendency of the present complaint, the OP sent a letter dated 15.11.2022 Ex. C4 whereby it was specifically admitted that in view of pendency of litigation before the courts, the OP is not in a position to deliver the possession of the plot. So the act and conduct of the OP amounts to adoption of unfair trade practice on their part and also rendering deficient services to the complainant. In this regard, reference can be made to Ireo Grace Realtech Pvt. Ltd. Vs Abhishek Khanna & another (2021) 3 SCC 241, the Hon’ble Supreme Court has held that “allottees who have not been given possession, cannot be made to wait indefinitely for possession, nor they can be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them.” Further reference can be made to Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and others Vs DLF Southern Homes Pvt. Ltd. & others (2020) 16 SCC 512, whereby the Hon’ble Supreme Court of India has held that “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency.” Further, it has been held by the Hon’ble Supreme Court that “in case of gross delay in handing over possession by builder beyond contractually stipulated period, flat purchaser is entitled to just and reasonable compensation for such delay and such compensation not constrained by terms of rate which is prescribed in an unfair bargain.
8. It is strange that the OP issued a letter No.427 dated 07.02.2023 Ex. C5 calling upon the complainant to deposit original LOI, allotment letter and receipts of payment so that the refund of money could be initiated after deducting 10% of the consideration money. In this letter, the OP did not quote any rule or regulation which entitles the OP to deduct 10% of the deposited amount. There is clause 8 in the allotment letter which allows the OP to deduct an amount of 10% of the total consideration in case the allotment is not accepted. But in the present case, the allotment was accepted by the allottee and it is the OP who failed to deliver the possession of the plot to the complainant along with unencumbered title and basic amenities. It is a settled law that one cannot take advantage of one’s own wrongs. So the demand of deduction of 10% is also illegal and arbitratory and cannot be enforced against the complainant.
9. Now this Commission is of the view that the complainant is entitled to compensation for deficiency of service and unfair trade practice on the part of the OP. The provisions of the Consumer Protection Act enable a consumer to claim and empowers the Commission to redress injustice done to the complainant. The amount of compensation can be determined by taking into facts and circumstances of each case and also mitigating circumstances that may arise in favour of the opposite party as well. Reference can be made to 2020(3) Apex Court Judgments 27 (S.C.) in DLF Home Developers ltd. (Earlier known as DLF Universal Ltd.) & another Vs Capital Green Flat Buyers Association Etc. In these set of facts and circumstances, it would be just and appropriate if the OP is directed to refund the deposited amount Rs.7,23,188/- along with interest @9% per annum from the date of filing of this complaint till its actual payment within 30 days from the date of receipt of copy of order. The OP shall further pay composite cost of Rs.20,000/- to the complainant.
10. As a sequel of above discussion, the complaint is partly allowed with direction to the OP to refund the deposited amount of Rs.7,23,188/- along with interest @9% per annum from the date of filing of this complaint till its actual payment within 30 days from the date of receipt of copy of order. The OP shall further pay a composite cost of Rs.20,000/- (Rupees Twenty Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.
11. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Sanjeev Batra) Member President
Announced in Open Commission.
Dated:02.07.2024.
Gobind Ram.
